Kinsland v. Mackey

• Decision Date: 01 May 1940
• Docket Number: 26.
• Citation: Kinsland v. Mackey, 217 N.C. 508, 8 S.E.2d 598 (N.C. 1940)
• Parties: KINSLAND v. MACKEY.
• Court: North Carolina Supreme Court

8 S.E.2d 598

217 N.C. 508

KINSLAND v. MACKEY.

No. 26.

Supreme Court of North Carolina

May 1, 1940

New trial.

Civil action in the nature of quo warranto to try title to office of tax collector of the town of Canton, North Carolina.

The charter of the town of Canton, a municipal corporation organized and existing under and by virtue of Chapter 90 of Private Laws of 1907, and acts amendatory thereto, provides for a governing body of said town to consist of a mayor and three aldermen to be elected at an election to "be held on Tuesday after the first Monday in May, one thousand nine hundred and seven and biennially thereafter".Section 5.The Board of Aldermen is given "the power to appoint or elect a constable or marshal, clerk, treasurer, tax collector, special policemen and such other officers and agents as may be necessary to enforce the ordinances and regulations of the town as provided by law", section 4 but the terms of office for such appointees are not fixed by the act.

Plaintiff alleges substantially these facts: That by appointment or election duly made in special meeting of the governing body of the town of Canton, held on June 30, 1939, he is the duly appointed or elected tax collector of said town; that the defendant having first been elected or appointed tax collector of said town by its governing body on September 27, 1937, was continued as such by the governing body of said town at regular meetings held on May 8, 1939, and June 5, 1939; that the appointment of plaintiff on June 30, 1939, operated as a removal of defendant from said office of tax collector; that, though demand has been made upon defendant to surrender said office and the books and records appertaining thereto to plaintiff, and though at a regular meeting of the said governing body held on July 24 1939, defendant, who was present, was ordered to surrender all things pertaining to said office of tax collector to designated certified public accountant and to plaintiffdefendant refused to relinquish the office and to surrender the monies, books and records belonging thereto; and that "defendant now usurps, intrudes into and unlawfully holds and exercises the office of tax collector of the town of Canton".

Defendant denies that plaintiff is the duly appointed or elected tax collector of the town of Canton, and denies that plaintiff is entitled to the office and the books and records and monies pertaining thereto.On the other hand, while admitting that he has refused to relinquish the office and to surrender the monies, book and records appertaining thereto, defendant avers that on September 27, 1937, he was duly and lawfully elected and appointed by the governing body of the town of Canton as tax collector; that thereafter, at a regular meeting of the mayor and board of aldermen of said town held on June 5, 1939, he was unanimously re-elected and re-appointed tax collector of said town for a fixed and definite term for the ensuing two years; that thereupon he took the oath of office, qualified and entered upon the discharge of the duties of said office, which he now lawfully holds; that his books, records and accounts have been inspected and examined at regular intervals by competent and capable auditors and accountants selected by the governing body of the town, and same have at all times been found to be correct; that no charges of incompetence, misconduct or malfeasance have been made against him by anybody; that he has faithfully and diligently discharged the duties of the office and no cause for his removal has been suggested; and that he is entitled to hold and receive the salary, fees and emoluments of said office.

Upon the trial below plaintiff introduced in evidence extracts from the minutes of the Board of Aldermen of the town of Canton showing (1) That J. D. Mackey was appointed Tax Collector at regular meeting on September 27, 1937; (2) That at meeting on May 8, 1939, all town employees were retained until further notice; (3) That at regular meeting on June 5 1939, "Motion was made by Alderman Hipps, seconded by Alderman McCracken, that J. D. Mackey be appointed as Tax Collector.Motion carried"; (4) That at special meeting on June 30, 1939, "Motion made by Alderman Westmoreland seconded by Alderman McCracken, that Way Kinsland be appointed as Tax Collector at $145 per month *** Motion carried.Alderman Hipps voting 'No' on this motion"; and (5) That at regular meeting on July 24, 1939, "Motion made by Alderman McCracken, seconded by Alderman Westmoreland that W. Bowen Henderson, C. P. A., is requested and authorized to receive from Mr. J. D. Mackey all monies and things now in his custody and possession as Tax Collector and Deputy Clerk of the town of Canton, and to transfer all monies and things so received...